Case of European Court of Human Rights, March 15, 2018 (case NAÏT-LIMAN v. SWITZERLAND)

Defense:SWITZERLAND
Resolution Date:March 15, 2018
SUMMARY

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

 
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GRAND CHAMBER

CASE OF NAÏT-LIMAN v. SWITZERLAND

(Application no. 51357/07)

JUDGMENT

STRASBOURG

15 March 2018

This judgment is final but it may be subject to editorial revision.

In the case of Naït-Liman v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Guido Raimondi, President,Angelika Nußberger,Linos-Alexandre Sicilianos,Ganna Yudkivska,Helena Jäderblom,Ledi Bianku,Kristina Pardalos,Helen Keller,André Potocki,Aleš Pejchal,Krzysztof Wojtyczek,Dmitry Dedov,Yonko Grozev,Pere Pastor Vilanova,Pauliine Koskelo,Georgios A. Serghides,Tim Eicke, judges,and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 14 June 2017 and 7 December 2017,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case originated in an application (no. 51357/07) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national who has acquired Swiss nationality, Mr Abdennacer Naït-Liman (“the applicant”), on 20 November 2007.

  2. Relying on Article 6 § 1 of the Convention, the applicant alleged that the refusal by the Swiss civil courts to examine his civil claim for compensation in respect of the non-pecuniary damage caused by the alleged acts of torture, inflicted in Tunisia, had infringed his right of access to a court.

  3. The application was allocated to the Second Section of the Court, in accordance with Rule 52 § 1 of the Rules of Court (“the Rules”).

  4. On 30 November 2010 the application was communicated to the Government.

  5. The Redress Trust and the World Organisation against Torture (“the OMTC”), the latter being represented by the former, were given leave to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules.

  6. On 21 June 2016 a Chamber of that Section, composed of Işıl Karakaş, President, Nebojša Vučinić, Helen Keller, Paul Lemmens, Egidijus Kūris, Robert Spano and Jon Fridrik Kjølbro, judges, and also of Stanley Naismith, Section Registrar, unanimously declared the application admissible and held, by four votes to three, that there had been no violation of Article 6 of the Convention. The concurring opinion of Judge Lemmens and the joint dissenting opinion of judges Karakaş, Vučinić and Kūris were annexed to the Chamber judgment.

  7. On 19 September 2016 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 28 November 2016 a panel of the Grand Chamber accepted the request.

  8. The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24.

  9. The applicant and the Government each filed written observations (Rules 59 § 1 and 71 § 1).

  10. Observations were also received from the UK Government, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). In addition, observations were received from the Redress Trust jointly with the OMCT, from Amnesty International jointly with the International Commission of Jurists, and from Citizens’ Watch. The parties replied to these observations in the course of their oral submissions at the hearing (Rule 44 § 6).

  11. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 June 2017 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the GovernmentMr F. Schürmann, Head of the International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police,              Agent,Mr N. Meier, Head of the Private International Law Section, Federal Office of Justice, Federal Department of Justice and Police,              CounselMs C. Ehrich, lawyer, International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police,Ms A. Begemann, lawyer, Diplomatic and Consular Law Unit, Public International Law Directorate, Federal Department of Foreign Affairs,Advisers;

    (b) for the applicantMrP. Grant, MrF. Membrez, Counsel.

    The Court heard addresses by Mr Grant, Mr Membrez and Mr Schürmann and replies by Mr Membrez, Mr Grant and Mr Schürmann and Mr Meier to questions put by the judges.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  12. The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva.

  13. The facts of the case, as submitted by the parties, may be summarised as follows.

    1. The background to the present case

  14. According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment stating that he represented a threat to Italian State Security. He alleges that he was then taken to Tunis by Tunisian officials. By his own account, he has never instituted proceedings against the Italian authorities in respect of those events.

  15. The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout the entire period of detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.

  16. The applicant submits that he suffers from a series of physical and psychological injuries and disorders.

  17. After having been subjected to the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for asylum in the same year. The applicant has since been living in the Canton of Geneva.

  18. On 8 November 1995 the Swiss authorities granted the applicant asylum.

    1. The criminal complaint against the Tunisian Minister of the Interior in office at the time of the alleged facts

  19. On 14 February 2001, having learnt that A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Republic and the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, causing danger to health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages.

  20. On the same date the Principal Public Prosecutor transmitted to the head of the security police, by internal mail, a request to “attempt to locate and identify the accused individual, who [was] supposedly hospitalised in the Geneva University Hospital, for heart surgery” and “if possible, to arrest him and bring him before an investigating judge”. On receipt of this request, the police immediately contacted the hospital, which informed them that A.K. had indeed been a patient there, but that he had already left the hospital on 11 February 2001.

  21. On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him. This decision to discontinue the proceedings was not challenged by the applicant.

    1. The civil proceedings against the Minister of the Interior in office at the time of the alleged facts

  22. By his own account, on 22 July 2003 the applicant asked a Tunisian lawyer to represent him with a view to bringing a civil action for compensation against A.K. and the Tunisian Republic. On 28 July 2003 the lawyer informed the applicant that this type of action had never been successful and advised him not to lodge such a claim. It was allegedly impossible to lodge a civil action of this sort in Tunisia.

  23. By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Court of First Instance of the Republic and the Canton of Geneva (“the Court of First Instance”) against Tunisia and against A.K. He claimed 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation in respect of the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under section 133 (2) of the Federal Law on Private International Law (Loi fédérale sur le droit international privé, the LDIP, see paragraph 37 below), had been met.

  24. On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented.

  25. By a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the grounds that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows:

    “With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant’s detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 of the LDIP.”

  26. Under section 3 of the LDIP (see paragraph 37 below), the Swiss courts also lacked jurisdiction under the forum of necessity, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows:

    “All of the acts with regard to whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary...

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